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Law and Public Health Proceedings of the 1st NSLR Symposium Law and Public Health Sponsored by: Knowledge Partners: Vol. 13(2) Symposium Proceedings 2019 EDITORIAL BOARD Amani Ponnaganti (Editor-in-Chief) Medha Damojipurapu Nilav Banerjee Parika Kamra Prateek Surisetti Patron-in-Chief Prof. (Dr.) Faizan Mustafa Faculty Advisor Asst. Prof. Sidharth Chauhan Advisory Panel His Excellency Judge Abdul G. Koroma Prof. B.S. Chimni (Former Judge, (Chairperson, Centre for International Legal International Court of Justice) Studies, JNU, New Delhi) Prof. Amita Dhanda Justice Dhananjaya Chandrachud (Professor of Law and Academic Dean, (Judge, Supreme Court of India, New Delhi) NALSAR University of Law, Hyderabad) Mr. Arvind Narrain Mr. Somasekhar Sundaresan (Founding Member, Alternative Law Forum, (Advocate, Independent Legal Counsel) Bangalore) This issue shall be cited as 2019 (13) NSLR(1) <page no.> ISSN 0975 0216 The NALSAR Student Law Review is provided under the terms of the Creative CC Commons Attribution-Non Commercial – Share Alike 2.0 Public License. The License is available at <http://creativecommons.org/licenses/by-nc-sa/2.0.>. Subject to the above mentioned license, the NALSAR Student Law Review is protected by the Indian Copyright Act, 1957 and/or other applicable law. Any use of the work in violation of the above mentioned license and copyright law is prohibited. The opinions expressed in this review are those of the authors. Contents Editorial i Panel Discussions Law, Technology and Public Health: The Privacy Dhvani Mehta, Divya Raj, Murali 1 Implications of the Storage and Use of Electronic Neelakantan, Ruhi Kandhari, Health Records Varalakshmi Elango Law, Gender and Public Health: Evolving a Legal Amita Pitre, Mrinal Satish, 33 Framework to Confront Gender-Based Violence from a Sreeparna Chattopadhyay, Health Systems Perspective Vyjayanti Mogli Mental Health Policy in India: Challenges and Suggestions Amba Salelkar, K. 61 Chandrasekhar, Rahul Shidhaye, Reshma Valliappan, Vaishnavi Jayakumar The Future of Right to Health in India: The Path to Realising Imrana Qadeer, K. Sujatha Rao, 85 Universal Access N. Purendra Prasad, Soumitra Ghosh, Shreelata Rao Seshadri Special Lectures Human Rights & Health: Learning from HIV Vivek Divan 97 The Legal Journey of Surrogacy Regulation in India: Denying P. M. Arathi 123 Rights, Delaying Legality and Increasing Exploitation Articles Public Health Implications of Intensive Farm Animal Production Humane Society International 143 in South Asia: The Need for Regulation Acknowledgments 205 EDITORIAL Law plays an important role in shaping society, enabling us to articulate rights and realise societal aspirations. Public health focuses on the health, safety and well-being of a population, striving to provide the maximum benefit for the largest number of people through interdisciplinary engagement to evolve solutions. Public health considers a wide view of health, going beyond physical health to include issues ranging from mental health and violence to health inequity and universal access to health coverage. Government proposals in the past have been inadequate in addressing the dynamic factors behind poor health. In the context of law’s role in improving access to healthcare, there has been a growing movement to see the right to health as a fundamental right in the developing world, ensuring that the government prioritises actualising universal health care. While the National Health Policy 2017 falls short of recognising health as a fundamental right, it advocates a progressive, assurance-based approach to universal health coverage. The 1st NALSAR Student Law Review (NSLR) Symposium took place in February 2019, with the objective of improving the visibility and effectiveness of law as a tool to protect and promote public health in India from a human rights perspective. To this end, the symposium brought together individuals from law, medicine, sociology, economics and other disciplines together to engage with ideas at the intersection of law and public health, with an emphasis on looking for ways to bridge the gap between research and policy. This issue of NSLR details the proceedings of the two-day symposium, including reports of four panel discussions, the transcripts of two special lectures and one article. We hope this compilation helps begin a deeper engagement with issues at the interface between law and public health in India. The summarising, paraphrasing and editing of the symposium discussions and lectures are the responsibility of the Editorial Board and, therefore, any errors or discrepancies that may have arisen in the course of doing so are entirely the responsibility of the Board. Thank you. Editorial Board LAW, TECHNOLOGY AND PUBLIC HEALTH: THE PRIVACY IMPLICATIONS OF THE STORAGE AND USE OF ELECTRONIC HEALTH RECORDS Dhvani Mehta, Divya Raj, Murali Neelakantan, Ruhi Kandhari & Varalakshmi Elango The privacy implications of the storage and use of electronic health records (EHRs) lie at the interface of contemporary debates surrounding law, technology and public health. In K. S. Puttaswamy v. Union of India, the Supreme Court held that infringements of privacy without the force of law are constitutionally invalid. Recent government initiatives necessitate reflecting on the privacy implications of storage and use of EHRs. EHRs facilitate public health surveillance, a system of collecting data to better understand infectious diseases, chronic diseases and environmental exposure. In 2016, the government notified the Electronic Health Record Standards to realise a “standard-based system for the creation and maintenance of EHRs.” These standards deal with issues of data privacy and security of EHRs, aiming to safeguard confidentiality. However, they do not have the force of law. Additionally, NITI Aayog’s National Health Stack (NHS), which is a shared digital healthcare infrastructure to oversee the Report authored by Prateek Surisetti and Aashna Chowdary. Transcription by Aashna Chowdary, Prisha Tejani and Raghunandan Sriram. 1 Law, Technology and Public Health implementation of the Ayushman Bharat Scheme as well as other public healthcare programs, includes national health electronic registries, a federated personal health records framework and a national health analytics platform. While the goal of the NHS may be to utilise patient data for better implementation of welfare schemes, there is potential for abuse. The Digital Information Security in Health Care Act, 2018, a draft legislation brought out by the government, seeks to address this. The Act enables digital sharing of personal health records between hospitals and clinics and ensures the owner of health data “the right to privacy, confidentiality, and security of their digital health data.” It also provides for the creation of health information exchanges to share EHRs and an authority to regulate them. India has the opportunity to realise a legal framework that strikes the appropriate regulatory balance between furthering the benefits of public health surveillance and safeguarding individuals’ right to privacy. This panel discussion aimed to analyse NHS from a privacy perspective and suggest an appropriate legal framework for the storage and use of EHRs. The opening session, moderated by Ms. Tuhina Joshi, Policy Associate at Ikigai Law, dealt with the intersection of technology, law and public health. More specifically, the discussion revolved around Indian schemes, such as PMJAY,1 that involve Electronic Health Records (EHRs). 1 Pradhan Mantri Jan Arogya Yojana (PMJAY) or Ayushman Bharat Yojana. 2 NALSAR Student Law Review Ms. Joshi, starting in broad strokes, put across a few questions associated with data and privacy. “How do they treat this data? Do they know how sensitive this data is to us? Do they understand the implications of sharing and transmission of this data? Do they understand the threats that the possible exposure of this data could pose to us? These are the questions we would like to explore today, as we try and understand how the government has grappled with these issues of balancing the interests of privacy versus the public interest in maintaining public health.” Next, Ms. Joshi invited Ms. Ruhi Kandhari, a writer for The Ken, to explain the fundamentals of EHRs. Ms. Kandhari explained that she had been following EHR related schemes since early 2017. At that point in time, the Indian government had released standards for EHRs as a precursor to initiating the “Integrated Health Information Platform” (IHIP).2 The IHIP, as envisaged, involved collection of patient data, from various participants (e.g. doctors, social health workers, laboratories, insurance companies), that could be accessed by policy makers and academicians in real time. The patients were contemplated to be identified on the basis of a unique identifier (e.g. Aadhar). 2 The IHIP was conceptualized earlier than the PMJAY. In 2018, the IHIP was hardly implemented but a new scheme, PMJAY was launched. Around the same time, the NITI Aayog proposed the National Health Stack as an aid in implementation of PMJAY. It is unclear as to whether the National Health Stack will co-exist with IHIP or one will be scrapped. 3 Law, Technology and Public Health The benefits, from the government’s side, were expected to include data driven policy making, improvement in epidemic detection capabilities3 and greater efficiency in the insurance market through better targeted insurance policies. “It is accessible in one place, for someone sitting in Delhi. It is relevant for
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